Month: June 2015

Not every day do the worlds of law and pop culture collide so tremendously as they did today. Then again, not every day do you have Supreme Court decisions like Obergefell v. Hodges. Undoubtedly you have read close to 525,600 Facebook statuses, tweets, and news clippings about this landmark victory for gay rights. You may be rejoicing. You may be livid. Let’s put those emotions aside for a moment to assess the Obergefell opinion and figure out why love won.

First, a brief history…

Obergefell is certainly a revolutionary decision. But for those following the Court (and political trends) over the past fifteen years, it is hardly a surprise. Prior to the 2000s, a number of states had passed laws criminalizing certain homosexual acts. In Lawrence v. Texas (2003), Justice Anthony Kennedy, writing for the Court, held that such laws discriminated on the basis of sexual orientation and thus violated the Fourteenth Amendment to the U.S. Constitution.

This was a huge step forward for gay rights, but there still remained the matter of gay marriage. In 1996, Congress had passed the Defense of Marriage Act (DOMA), which defined marriage for all federal law purposes as “only a legal union between one man and one woman as husband and wife.” However, in the ten years after Lawrence v. Texas, several states granted marriage rights to same-sex couples, either through judicial or legislative processes. Still, DOMA remained alive-and-well.

Then, in 2013, the Court held in United States v. Windsor (2013) that DOMA was invalid to the extent that it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state where they were licensed. Again, a massive victory for gay rights. (And again, Justice Kennedy authored the opinion.) But what did this mean? It meant that, for example (and as was the case in Windsor), the surviving spouse of a same-sex couple could claim a spousal deduction from the federal estate tax. While this was another huge leap forward, it still did not legalize gay marriage. But by overturning DOMA, it did clear the way for other courts to do so.

Now to today’s opinion…

In the two years since Windsor, many same-sex marriage cases have reached federal courts of appeals, and gay marriage has been legalized in many jurisdictions. But there was still a major problem: A same-sex couple married in one state (where gay marriage was legal) could travel to another state (where gay marriage was not legal) and be denied the benefits of marriage. This meant gay couples could not take advantage of certain spousal tax benefits; evidentiary privileges; adoption rights; medical decision making authority; and so on.

Finally, however, some of these cases reached the Supreme Court in the form of Obergefell v. Hodges (2015), which is actually a combination of several similarly situated cases. In this case, the Court was confronted with the question of whether or not gay marriage is a constitutionally protected right. The issue could be avoided no longer.

As you now know, the Court’s opinion (once again authored by, you guessed it: Justice Kennedy) held that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. Gay marriage–nationwide–is now not only legal, but constitutionally protected. The Court interpreted the two central provisions of the Fourteenth Amendment (the Due Process Clause and the Equal Protection Clause) to mean that same-sex and opposite-sex marriages are equal under the law.

The opinion itself is beautiful in its simplicity. Much of it is devoted to the judicial history summarized above (although to get a full view of that history, you should definitely read the opinion) as well as cultural and political developments spanning the entirety of human civilization. But the meat of the opinion, the real holding (a legal term meaning the binding law of the case), was this: The right to marriage is a right enjoyed equally by all people, gay or straight. This, the Court explained, is firmly rooted in our nation’s history: From past Supreme Court decisions affirming the equality of interracial marriage, to decisions affirming the autonomy of individuals to make of their lives what they will. The issue is not, as some people have framed it, whether there is a constitutional right to gay marriage, but instead whether there is a constitutional right to marriage period. The Highest Court of the Land has now firmly stated that there is such a right.

The majority encountered staunch opposition from the other justices. In fact, each of the justices in the minority (Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito) wrote a separate dissenting opinion. These dissents are of varying degrees of ire and outrage. Yet the one argument that you will most likely hear disparaging Obergefell is that the Court today engaged in “judicial activism.” Chief Justice Roberts encapsulated this argument when he criticized the majority, reciting the ages-old aphorism that, under the Constitution, judges have power to say what the law is–not what it should be.

As with all age-old sayings, I encourage you to take this one with a grain of salt. (But certainly I am not saying you are wrong if you agree with Chief Justice Roberts). Because the line between what the law is and what it should be is a very thin one and is entirely a matter of perspective. The Court’s opinion today affirms a strong heritage of individual autonomy when it comes to the most private and intimate decisions in life. In a separate string of cases (see Loving v. Virginia and Turner v. Safley), the Supreme Court has consistently held that the right to marriage is a right enjoyed by all. The Court’s decision today simply affirmed that sentiment, regardless of sexual orientation. That is what the majority believed the law is. This is what they believed Court precedent compelled them to do. You may agree or disagree (you would be in good company with 4 of the 9 justices on the Supreme Court), but the law is what it is.

So what does this mean for me?

You now have permission to unpack those emotions we put aside at the beginning of this article. This is an opinion that invites a lot of passion from both sides, and rightly so. Even the Supreme Court itself was sharply divided in this close 5-4 decision. You will hear people rejoicing in the spirit of equality. You will hear people decrying the opinion as an affront to Christianity or other religious and moral beliefs. The vehemence of these opinions will not fade quickly. But I am sure that, eventually, it will fade.

From a legal perspective, I loved the decision of Obergefell v. Hodges. In my opinion it got the law exactly right. People may disagree because gay marriage does not fit into their religion; yet the First Amendment prohibits the government from establishing or favoring a religion, so it cannot prohibit gay marriage on those grounds. People may say that gay marriage is not supported by the history and tradition of our country (echoing, in some ways, that same religious argument); yet there is a dearth of case law proving otherwise; and moreover, just because we have always done something does not mean we should continue to do it (e.g., slavery, subjugation of women). People may say that they hate this opinion because, honestly, they just hate gay people. I wish those people did not exist in our society, but they do. And unfortunately, there is no logical or constitutional argument that can persuade people out of their hatred.

Apart from the legality of it all, though, I think it is quite definitely the most beautifully written opinion I have ever read (and as a law student I have, regrettably, read thousands of opinions). It is simple, artful, and bold in ways that causes one to pause and realize that you are indeed witnessing history unfolding before you. There are not many 28-page opinions I enjoy reading, but Justice Kennedy wrote so wonderfully that it sang. It was in many ways a masterpiece. You should really take time to read it (and form your own opinions).

Personally, I am so incredibly happy today for all my gay friends, that you have had your love recognized as a constitutional right that is now the law of the land. Today must feel like a dream come true, and I am truly, truly glad for you. And to all those who are disappointed with today’s ruling, I want to remind you of this: You can disapprove of the Court’s decision but still be happy for the millions of people who are today reveling in love. You can oppose the law without opposing the people affected by the law. You can fight for change without fighting one another. That is the difference between opposition and prejudice. And that is how we can make sure that love really does win.

*****

An Assortment of Favorite Passages From the Opinion

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.

*****

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

*****

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

*****

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

*****

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

—–

David Postic is a third-year law student at the University of Oklahoma.

By Lester Asamoah

After the Charleston tragedy, among other tragedies foreign and domestic, the common notion is to call or pray for peace. But, in our universal desire for peace, do we recognize what peace is? Generally, peace is understood as an absence of violence. That is not a wrong definition. But, to fathom the nature of peace, we must discern the dimensions of violence.

The founder of the Peace Studies discipline, Dr. Johan Galtung, tackles this in his article Violence, Peace, and Peace Studies. (The idea of the Six Dimensions of Violence are all from Dr. Galtung, I attribute all of these ideas to him) My primary aims are to summarize a small portion of his analysis of violence in a digestible way, then apply them to contemporary situations.

The Six Dimensions of Violence

Taking the general idea that peace is the absence of violence is the starting point; if we can understand the dimensions of violence, we can prevent the obstruction of peace. Violence is usually thought of as physical and emotional violence. Again, that is not wrong, but a richer explanation of violence is critical to understand varying levels of violence occurring.

Before analyzing what Galtung refers to as the six dimensions of violence, he makes an important point about violence by explaining the potential versus the actual. Acts of violence are avoidable, and they minimize human potential. I will list the dimensions of violence and apply them to contemporary situations below:

Physical and Emotional violence: Physical violence includes the obvious physical harm of a person, however, it also includes restricting mobility. By keeping someone in chains, or keeping them from traveling far distances is a form of physical violence because one is being physically restricted from their potential realization.

Physical and emotional violence, as I stated before, is pretty well understood. So I want to focus on the restriction of mobility. A strong and tragic example of violence by restricting mobility is the story of Kalief Browder. Browder was held at Rikers Island for three years without a trial and eventually committed suicide once freed. The detention of Browder is tragic, but not entirely uncommon. Many people are held without trial or are held for disproportionate times to their crimes. This is violent. The act of detention, especially against the innocent is violent.

Negative and Positive Influence: (Influence always assumed as negative towards the subject’s potential) Whenever an influencer inflicts punishment for what they think is wrong OR rewards their subject for what they believe is right.

Negative influence happens all of the time. When individuals are punished for their religious or political views, this is violent. Especially when it results in a loss of employment. Also, when someone is positively influenced to become less they can be, that is violent. Here is an excerpt from The Autobiography of Malcolm X, when Malcolm’s junior high teacher tries to guide him, illustrating positive influence:

“’Malcolm, one of life’s first needs is for us to be realistic. Don’t misunderstand me, now. We all here like you, you know that. But you’ve got to be realistic as a n—-r. A lawyer—that’s no thing you can be. You need to think about something you can be. You’re good with your hands—making things. Everybody admires your carpentry shop work….’”

Note the teacher is trying to reward Malcolm’s work, and is generally being positive for the time, but is clearly obstructing Malcolm’s potential.

Objects: In response to the question, “when biological objects aren’t hurt, is there violence?” Galtung notes that violence can occur when the destruction of a non-human object forebodes the destruction of a physical or biological object.

Galtung makes an example in saying that nuclear tests are violent because they are used to forebode the destruction of biological objects (and often the tests destroy biological objects). Another example, many would argue, is the Israeli policy of destroying homes in Palestine. While nobody (usually) dies from the policy of destroying homes, it is usually used as a deterrent to terrorism.

Subjects: When there is no human subject that acts, can violence occur? Yes. Systemic violence occurs when people are restricted from obtaining resources needed for their potential. This situation, of course, assumes that this restriction is avoidable.

Intent: Violence can take place even with no conscious intent by the actor. Any act, intentional or unintentional, that robs potential in any avoidable situation, is a violent act.

Drunk driving is a simple way to understand intent. When someone is driving while drinking, their intent isn’t to hit another car. Yet… it still happens. Accidents will always happen in today’s world, but that does not mean they are exempt from being violent acts. The previous sentence is important because many times accidents and “unintentional” acts are deemed non-violent.

Manifest/Latent: Violence, as most are familiar with, is manifest, or obvious and physically visible acts of violence. However, Galtung is also concerned with the latent, or an unstable situation where any small act can trigger a manifest act of violence. I.E. daily acts that destabilize a situation leading to when a small act that can trigger a large act of violence.

Manifest violence is something visible like someone getting shot. But latent violence is most easily explained by the phenomena of microaggressions. Small, even as the name suggests, micro levels of day-to-day violence and disenfranchisement can build up and become largely violent acts. Rutgers student Tyler Clementi committed suicide in 2012 after discovering his sexual acts were secretly recorded by his roommate. The recording was the act that triggered the self-violent response of suicide.

Moving Forward

Now that we have a better understanding of the dimensions of violence, we can move toward a more peaceful America. Of course, the examples were highly limited and just designed to give a basic understanding. But putting this knowledge to use will explain many phenomena of violence against Native Americans, African-Americans, impoverished and homeless Americans, and even violence occurring against other cultures overseas. In the 21st century, we have to realize that violence is far beyond emotional and physical violence. And we can overcome this violence if we make genuine efforts to do so.

—

Lester is a Graduate Student at American University’s School of International Service.